Safety and security for business travellers: a legal and moral imperative for Canadian employers, part 2

In C’est la vie? A Step-by-Step Guide to Building a Travel Risk Management Program, consulting firm Advito suggests that while the general practice of risk management has gained strategic importance in the executive boardroom, “coordinated management of risks relating specifically to travel receives little attention.” There are many possible explanations for the general inattention to travel risk management within organizations.

In some cases, business leaders fail to recognize that employee travel falls within the physical scope of workplace activities. In other cases, decision-makers believe that only those travelling to international high-risk destinations require any type of security protection. In most organizations, there is also a gap in knowledge when it comes to travel security, contributing to a lack of risk awareness and fragmented ownership of the function within the organization.

Consider these common business travel myths.

Myth #1: When travelling on business, employees are not in a workplace

A long line of case law decisions and various statutes and regulations come together to provide a relatively clear physical definition of the workplace. In British Columbia, the Workers Compensation Act defines “workplace” as, “any place where a worker is or is likely to be engaged in any work and includes any vessel, vehicle or mobile equipment used by a worker in work.” Under Ontario’s Occupational Health and Safety Act, workplace is defined as, “any land, premises, location or thing at, upon, in or near which a worker works.”

In R v Port Colborne (City) [1992], the Ontario Court of Justice ruled on the legal definition of workplace under the Occupational Health and Safety Act (OHSA) in a case involving firefighters who were injured while conducting a rescue. The Court stated:

With some difficulty I have reached the conclusion that a place where a rescue by a firefighter takes place, whether it be at a fire or at a water rescue or in quicksand attempting to rescue a horse, is a workplace within the meaning of the Occupational Health and Safety Act.

In the more recent case of Blue Mountain Resorts Limited v. Ontario (Labour) [2009], the Ontario Labour Relations Board adjudicated on the requirement to submit accident reports under the OHSA. A key question in the hearing was whether a single location can have dual definitions. The example cited was a recreational facility, which would not be a workplace in the absence of workers, but would become a workplace when workers were present (e.g., performing security or maintenance duties).

The Port Colborne decision involved firefighters who, while having a fixed workplace at the fire station, also worked in many other locations as their duties required. The Port Colborne decision determined that the firefighters’ workplace essentially travelled with them. Wherever they were working was their “workplace.”

The idea that employees’ workplace effectively travels with them is a highly relevant concept in relation to both work-related travel and workplace safety. In the context of workplace violence, the Canadian Centre for Occupational Health and Safety has provided a useful overview of the physical scope of the workplace under Canadian law:

Workplace violence is not limited to incidents that occur within a traditional workplace. Work-related violence can also occur at off-site business-related functions, such as conferences, trade shows, or social events related to work; and in clients’ homes. It can also include violence that occurs away from work, but resulting from work. For example, a social worker who receives a threatening telephone call from a client at his or her home is a victim of workplace violence.

In light of the preceding legal definitions and case law interpretations, it is clear that the legal definition of workplace encompasses activities that extend well beyond the traditional physical workplace to incorporate local and international travel, attendance at work-related events, and a wide range of other activities that take place within the scope of the employment relationship.

Contrary to popular opinion, travel-related risks do not exist solely in the domain of international business travel. As soon as employees move outside of a regular fixed workplace, they expose themselves to a heightened degree of unpredictability and risk, regardless of the destination. A higher level of specialized care needs to be exercised in certain international destinations to address geopolitical or other risks, but organizations should be taking active steps to protect the security and safety of all work-related travellers.

The inherent risks associated with local and regional business travel within Canada are recognized and addressed by the CCOHS in the most recent edition of its Violence in the Workplace Prevention Guide. An entire 13-page section of this national guideline for employers focuses on domestic travel safety, including situational awareness, driving safety, parking lot safety, travel safety and hotel safety.

Ontario’s Ministry of Labour, in a document titled, Workplace Violence and Harassment: Understanding the Law, has also identified the need to address travel safety risks in complying with the recent workplace violence and workplace harassment amendments (Bill 168) under the OHSA:

The workplace violence program must have measures and procedures in place to control the risks faced by mobile workers. An assessment may not be able to take into account the specific risks related to the nature of every workplace that a mobile worker may visit. However, the assessment should take into account risks associated with … the type of work and work conditions.

In the context of international travel, some have argued that the OHSA and equivalent health and safety statutes and regulations across Canada do not apply to out-of-country travel. However, in the first place, organizations have a moral and social obligation to protect their employees wherever they travel on the employer’s business.

Further, from a regulatory compliance standpoint, there is substantial reason to believe that Canadian OHS laws do in fact apply to foreign business travel. A key point of consideration is the fact that the definition of workplace under most health and safety statutes and regulations across Canada is not confined to geographical (i.e., provincial or federal) boundaries.

While it is certainly the case that a serious injury or the death of an employee overseas would be investigated in the foreign jurisdiction of occurrence, such an incident could also attract serious charges under the relevant health and safety regulation or statute in Canada.

Consider this: if a Canadian employee travelling on business in a foreign country was injured or killed and it was discovered that the employer had failed to perform a risk assessment, implement a policy, enact risk control measures or perform safety training, that employer would be accountable for any such acts of non-compliance under the respective OHS statute or regulation in the relevant Canadian jurisdiction. In other words, it would be the act of failing to assess the risks, implement a workplace safety policy or program and train the employee, for example, that would trigger a charge under the respective OHS Act or Regulation.

It is important to remember that the common law duty of care is not diluted when employees suffer harm overseas. Organizations not identifying, assessing and managing travel-related risks to employees in these cases are subject to tort liability actions. The Huffington Post reported on a recent example involving a former aid worker who is suing her employer after being abducted and held captive for 105 days in Darfur in 2010.

Research suggests that the most effective travel safety and security programs are the product of multidisciplinary efforts. Typically, representation is required from human resources, legal, security, health and safety, insurance and travel departments (if a dedicated travel department exists). As noted in the Advito report, there are four types of stakeholder involvement in any travel risk management program:

The stakeholder(s) who initiate(s) the idea

The stakeholder(s) who provide(s) senior sponsorship to make it happen

The stakeholder(s) who is/are accountable for the program

The stakeholder(s) who manage(s) introduction and continuing management of the program

The size, structure and culture of the organization will ultimately shape the leadership of the travel risk management program. The first real test of any multidisciplinary planning group is to identify the range of travel-related risks faced by the organization. As noted in the National Business Travel Association report, Traveler Tracking and Risk Management Solutions:

Before determining what solution options are necessary or currently used, a risk assessment should be completed. This is not an independent exercise to be completed by the travel manager in isolation; the engagement of key stakeholders is vital. Cross-functional input is necessary to ensure all potential risks are identified, categorized, and mitigation plans documented.

In an article on workplace violence prevention best practice, I make the point that due to the multi-faceted nature of violence in the workplace, a similar multidisciplinary approach is required to build an effective program. For organizations looking to optimize both their workplace violence and travel risk management programs, there is substantial benefit to be gained in bringing together the two functions under an overarching governance or steering committee.

Conclusion

Too many organizations pay too little attention to the safety and security of travelling employees. In order to meet their duty of care obligations and compliance requirements under OHS statutes and regulations, employers should assess the risks faced by local, national and international business travellers, and take active steps to mitigate those risks through well-documented policies, procedures, operational risk controls, employee education and training.

Business travel is essential to the growth and development of organizations around the world. More than ever, proactive, thoughtful measures are required to protect business travelers, optimize their productivity on the road, reduce an organization’s liability and ultimately boost the bottom line. Being safe is certainly better for business than being sorry.

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David Hyde, M.Sc, CPC is a security and business risk consultant, author and educator with 26 years of broad-based leadership experience. He is principal consultant with David Hyde and Associates and in this role is a trusted advisor to a number of Canada’s top corporations on operational and reputational due diligence matters. Read more